High Court judge finds councils have power during pandemic to accommodate rough sleepers with no recourse to public funds

Local authorities have powers during the Covid pandemic to provide accommodation for rough sleepers with no recourse to public funds (NRPF), a High Court judge has ruled.

In Ncube, R (on the application of) v Brighton and Hove City Council [2021] EWHC 578 (Admin) Mr Justice Freedman said: “At an early stage of the pandemic, there was rolled out the ‘Everyone In’ scheme which was an initiative to get rough sleepers off the streets during the pandemic due to their vulnerability and the need to prevent others from being infected. Later, there was a concern that in respect of NRPF persons, this was not permitted and was contrary to the law.”

The case was brought against Brighton and Hove by a homeless failed asylum-seeker who sought accommodation from the council. This was refused.

In the proceedings he sought to argue that Brighton and Hove was required to accommodate him. The council disputed this, contending that “there is  no statutory provision empowering it to accommodate C" as "[h]is unlawful status disqualifies him from local authority support" and that any policy of accommodating homeless persons "irrespective of immigration eligibility" would be unlawful.

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The claimant's circumstances changed during the course of the proceedings. On 30 November 2020, he was provided with, and moved to, Home Office accommodation in Swindon. Thus, he became accommodated. Further, he no longer lived in the area of the defendant council.

It was submitted on behalf of the defendant that the case was academic. Brighton and Hove opposed the idea that the case had wider application, saying that it was fact sensitive such that it could not be a case of wider significance beyond the facts of the particular case. Further, the defendant objected also to what they said was an impermissible attempt to create a "rolling claim" in which objection was made to policies which came into existence after the issue of the claim for judicial review.

Brighton and Hove submitted that persons such as the claimant, who require leave to remain in the UK but do not have it, as well as a number of classes of persons in the UK lawfully, are ineligible for homelessness assistance as a result of s.185 Housing Act 1996.

The Claimant and Shelter as Intervener submitted that local authorities such as Brighton and Hove did have the power to intervene to mitigate the effect of the pandemic and to protect the human rights of those within their area.

In particular, they submitted that where there is a statutory scheme outside the Housing Act 1996, the ineligibility in s.185 does not apply. Further and in any event, they said that a reading of legislation to ensure that it is Convention compliant provided the power of the local authority to be able to respond to the pandemic.

Mr Justice Freedman rejected the submission that the claimant’s change in circumstances meant the claim was academic. The judge said the challenge – as to whether it was a mistake of law of the council proceeding on the basis it had no power – was one which the court could and ought to consider. He said:

(1) Although the court generally will not determine cases where the outcome of the claim may no longer affect the rights and obligations of the parties to the claim, there are good reasons to proceed with the claim. It raises an issue of law which has ramifications of public importance concerning the power of local authorities to implement public health measures to take NRPF persons off the streets.

(2) The issue of law is applicable to potentially a large number of other similar cases present or future, bearing in mind the evidence before the Court about the potentially critical need to protect those who are homeless during the pandemic. This affects the ability of the local authority to join in the initiatives promoted by central government to take the homeless off the streets during the pandemic. It is important that the ability or lack of ability of the local authorities to assist is considered in this challenge rather than ignored because the Claimant has now been housed elsewhere.

(3) Whilst that suffices, other similar cases may be anticipated in Brighton. Brighton may not have another current case, but if they continue to adopt this policy, it is highly likely that there will be other such cases. Further, Brighton's view of the law is unlikely to exist in a vacuum. On the basis that other local authorities would interpret the law in the same way, there are likely to be many other such cases elsewhere;

(4) Provided that the issue is to be seen in general terms and not by reference to the facts of any case, the issue is not fact sensitive. It rests on whether there was a mistake of law. Where matters in contention are very specific to the case of the Claimant and which are not matters of general application, this will be indicated, and to that extent the Court is not required to decide those matters.

Mr Justice Freedman concluded that, subject to finalising the terms in an order, and any further submissions as to the precise terms of the declaration in order to reflect the judgment, he had in mind the following:

(1) It is declared as regards the provision of temporary accommodation pursuant to the "Everyone In" scheme or a successor initiative to street homeless persons in order to save lives alleviating the effect of the Covid-19 pandemic:

(a) the Defendant [Brighton and Hove] has powers under s.138 Local Government Act 1972 in the context of an emergency involving danger to life affecting the street homeless, to take action to provide accommodation or secure assistance for them to avert, alleviate or eradicate the effect of Covid-19;

(b) the duty under s.2B National Health Service Act 2006 is capable of permitting the provision of temporary accommodation by the Defendant as a step for improving the health of the people in the area;

notwithstanding that some of the recipients may be persons who are ineligible for assistance under s.185 Housing Act 1996, provided that the foregoing is not used to circumvent the restrictions of s.185 Housing Act 1996 or schedule 3 to the Nationality and Immigration Act 2002.

(2) There is no need for a declaration in respect of s.180 Housing Act 1996 which does not advance matters since it is only about assisting third parties and not about providing accommodation directly.

(3) Likewise, a declaration that the Defendant acted in error in failing to consider the above provisions might not do justice to the multi-factorial nature of the considerations in this case. Some of the argument was that whether there was power to apply the "Everyone In" scheme to NRPF persons, but a part of the objection was also that it was for central government and not the local authority. A part of the argument may have been facts and circumstances relating to the Claimant. The problem then becomes that that the matter does not lend itself to a declaration in respect of the Defendant's conduct without widening the matter from an error of law into how the Defendant acted in respect of then dispute as a whole. How the Defendant acted in a broader sense was not determined due to the accommodation of the Claimant by the Home Office.

(4) Likewise, there is no need for a declaration about the Localism Act 2011. As in Aburas (para. 23(iii)), it is not necessary or appropriate for this Court to resolve whether there are other circumstances where the 2011 Act may have a role to play in securing Convention rights. For the moment, the specific use of the Localism Act 2011 on the facts of this case has not taken the Claimant's case further.

Responding to the ruling, Cllr Siriol Hugh-Jones, joint chair of Brighton & Hove City Council’s housing committee, said: “This case highlights the difficult position of councils that want to ensure people are protected regardless of their asylum status.

“In the absence of government guidance, we welcome the identification by the court of the additional, albeit limited, powers councils have to help people with no recourse to public funds (NRPF) and not entitled to support from other agencies where there is a danger to life.”

She said the council would have preferred the government to act on its call to suspend the restrictions on assisting those with NRPF, but described the court’s clarification of exactly where councils are able to offer assistance as “helpful”.

Cllr Siriol Hugh-Jones added: “We intend to use those additional powers where appropriate in all future work involving people with NRPF.

“In this case, the court also agreed with our view that the responsibility for accommodating the individual concerned lay with the Home Office rather than the council.

“At the time of the legal challenge, the individual had not applied to the Home Office. The individual has since done so and is now in accommodation provided by the Home Office.”

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